The Legal Beat

Again, People Pointing Out That You’re Stupid Is Not An Attack On Freedom Of Speech
Posted on Tuesday September 27, 2022

We have reached that point in the academic calendar where law professors begin bawling crocodile tears over the loss of “free speech” on campus. And by “free speech,” these professors aren’t concerned that the government will crack down and silence the whiff of protest, but that students who say ignorant nonsense in class might have their feelings hurt when professors or fellow students explain how wrong they are.

What’s that we hear crackling over the conservative echo chamber radio? “We have met the snowflakes, and they are us.”

George Washington Law professor John Banzhaf put out a press release summing up the latest in this ongoing pity party:

At GWU, a well known law professor reports that he routinely has visits from students who wonder if they dare to speak freely in classes without being penalized by professors; a fear he has heard about only in the past several years. He suggests that “it is the widespread fear of conservative students who have faced faculties with overwhelmingly liberal viewpoints and growing intolerance on virtually every campus.”

The “well-known law professor” here is Jonathan Turley and the ocean of salt you have to consume is that he actually hangs out in his office. One suspects that directly interfacing with students would take a significant bite out of his daily routine cold-calling cable news outlets and begging for 5 minutes to describe why defrauding banks should be legal or whatever.

But let’s do the arguendo thing and assume he is in his office and these anonymous students are real people. The most, and probably only, important point in this anecdote is the idea that students fear that their grade will be impacted. If that’s really what students are telling him, a responsible professor wouldn’t be writing about it and misleading the public that law schools are handing out grades to their favorites. The responsible professor would be telling the students that the school employs blind grading procedures to avoid bias and that if they feel that their anonymous answers will be penalized that’s not discrimination, that’s a matter of failing to learn the material.

Because that’s what “penalized” means here. The issue spotter is asking students to say it is employment discrimination to tell a woman to show some skin to get a promotion not “do you personally think the law should lighten up and smile more?” These students want the school to indulge them with good grades for making an argument — convincing only in their own minds and 8chan — that the law should be different.

Once we dispense with the idea that law professors are going in and marking down students they didn’t like in class, this just comes down to conservatives being sad that everyone else makes fun of them which may be mean on a Kindergarten playground, but this is law school so toughen up.

He notes that what is happening at GWU Law School is happening on many campuses, and suggests that “it is the widespread fear of conservative students who have faced faculties with overwhelmingly liberal viewpoints and growing intolerance on virtually every campus.  Now a new study at North Carolina confirms how conservative students routinely ‘self-censor’ and do not feel comfortable sharing their views in classes.

Sometimes I “self-censor” when I’m listening to an astrophysicist explain quantum mechanics. I do this because that woman clearly knows more about the subject than I do. If I decided to spout off, no one would throw me in jail, but I’d get justifiably roasted by the professor and most of the students around me for being an idiot. This applies equally to the kid in a 2L Income Tax class raising his hand to say “but isn’t all tax theft and unconstitutional?” Or a 1L answering a crim issue spotter noting that “suspect D shouldn’t be charged with anything because I choose to believe drugs should be legal.” It’s not “self-censorship” to follow the rule against removing all doubt.

While these comical whiners dominate the recap, Banzhaf does cover more serious threats to campus free speech as well:

More recently at GWU, when students put up posters by a famous artist which were critical of Communist China’s record on human rights, the posters were taken down and the students were investigated; something which could put them, or their families in China, in serious danger. Earlier, a GWU student was ordered to take down a Palestinian flag after GWU received complaints about it from other students.

These incidents get to that fine line between expressing a political viewpoint and positioning that viewpoint as a signal of hostility to other students. And that is a tough area. Discussing immigration, for example, is a protected policy viewpoint… putting up signs saying it’s time to “build a wall to stop the murderers and drug dealers” is using that issue to convey tribal malevolence. There are absolutists who would claim that trying to manage the form of political speech is always bad. Personally, I’d say that part of training advocates is training them in how to make an argument in a civil society.

But the point is that serious conversations about freedom of speech on campus should revolve around this liminal zone.

And not so much about arguing that law schools need more conservative professors:

At Harvard, for example, the editors of the Crimson wrote that they disagree sharply “that a more even distribution of faculty along a conservative-liberal binary would increase productive disagreement in any meaningful way. We find little reason to believe that. In fact, boiling down ideological and intellectual diversity to such limited labels strikes us as downright reductive.”

An astute observation. Law schools have predominantly liberal faculty the way physics departments are overwhelmingly heliocentrists. No one — outside of Texas maybe — demands that schools hire more Ptolemaic geocentrist professors willing to offer a sympathetic voice to students who think the ocean swallows the sun every night. We should hold legal training to the same standard.

Banzhaf, perhaps unintentionally, strikes at something important in the last sentence of his summary. “[T]ruth may be dying if students are afraid to say what they believe to be true for fear of being penalized.” The operative phrase is “believe to be true.” These aren’t firebrand academics taking their depth of experience and formulating a new model to break up the establishment… it’s a bunch of 20-somethings who want a cookie for believing in a truth at odds with reality.

Believe whatever you want. Go ahead and share it if you want. But when you get treated like a clown, consider — I mean really consider — that it might just be because you are in fact a clown.

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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